The seasons of international law

by Cesare Romano

There is always a topic du jour in international law, a subject that defines a season of international law.

Between the mid-1970s to the mid-1980s, it was the law of the sea.
Between the mid-1980s to the mid-1990s, it was international environmental law.
Between the mid-1990s to present, it has been international criminal law.

Every season is brought about by a major international negotiation, culminating in a conference (i.e., the Third Conference on the Law of the Sea, the Earth Summit, and the Rome conference), and the adoption of a key treaty(ies), that is to say the Law of the Sea Convention, the Rio Conventions (Climate Change, Biodiversity and Desertification) and the Statute of the International Criminal Court).

These events catalyzed the attention of decision-makers and scholars, and pushed international law in new directions (or allowed international law to advance more boldly in previously chartered directions). Each season forged a generation of international legal scholars.

It seems to me that the season of “international criminal law” is gradually coming to an end, which raises the question of which is going to be the next one. What do you think the next season will be?

11 Responses

A little rule of law would be nice.

10.18.2006
at 8:07 pm EST Andrew Solomon

I vote for the upcoming season of ‘international economic law,’ in conjunction with increased attention accorded the ethics, economics and politics of global distributive justice (a reading list on which I can send to anyone interested).

Andrew Solomon’s point is, nonetheless, well-taken.

10.18.2006
at 8:23 pm EST Patrick S. O'Donnell

International rule of law, or (fingers crossed) international human rights law

I’m certainly no expert, but I’d have to guess corporate accountability (which, I think, is what Patrick also suggests?). Here’s hoping!

10.19.2006
at 11:42 am EST LM

Cesare:

An interesting post, though I think there is an alternate list of key international law topics for each era. Here’s another way of considering defining topics for the past few decades:

1970’s: The New International Economic Order and especially the relationship of national resources, foreign investment, and expropriation. North/South equity more generally.

1980’s: Law and the evolution of warfighting: the US and Nicaragua, Libya, Grenada, etc… the Soviets and Afghanistan, Angola, etc… Related to this, I would include renewed attempts at putting legal constraints on proliferation and using treaties to pursue disarmament.

The Early 1990’s: Nationalism and Secession

Mid-1990’s to Present: International Criminal Law.

I think we are heading to an era of having to think seriously about how or whether we can reconcile the universalist pretensions of international law with deep cultural differences. Not only Islamic issues (the topic of the day), but also different approaches one finds in Asia, post-Soveiet states, and other regions that have different traditions. (Not to mention concerns in Western states that international law is not reflective of local values.) I know this is not a specific substantive area; I think the coming issue is less substantive and more structural/systemic.

10.19.2006
at 12:17 pm EST Chris Borgen

What happened to the season of international trade law?

The establishment of the WTO was the biggest event of the mid 1990s – the GATT expands from a club of wealthy nations to a truly global organization WITH compulsory dispute resolution. IP is universalized. Trade trumps (or so it was said) environmental law and development. New investment regimes (esp. NAFTA Chapter 11) threaten national regulatory sovereignty (or so it was said)!

10.19.2006
at 2:07 pm EST Atik

In reply to LM, yes I believe such law will, eventually, better address corporate accountability, and even alter corporate law as such. This will in some measure mean taking on board human rights law, as presaged in a wonderful volume of recent essays: Thomas Cottier, Joost Pauwelyn, and Elisabeth Burgi, eds., Human Rights and International Trade (New York: Oxford University Press, 2005). [of course international economic law is not circumscribed by international trade and the WTO regime]

I wish, with Fiona, that human rights law would come to the fore (i.e., have its season), I just happen to think there has been of late a precipitous decline in the powers of moral and political suasion by the U.S. and its principal allies such that there is a leadership vacuum in the world community. In effect this means a lack of emulative power to persuade and push (with carrots) regimes in the direction of conformity to human rights norms, to demonstrate by example obesiance to human rights imperatives. I think the salience if not urgency of human rights will still be recognized through, so to speak, the back door, in conjunction with other forms of international law which will more transparently reflect the sorts of interests States value, prompting them, however reluctantly and by fits and starts, to provide both de jure and de facto recognition of human rights.

10.19.2006
at 2:27 pm EST Patrick S. O'Donnell

What happened with ‘international trade law’ was the collapse of the Doha Round of negotiations: perhaps best viewed as one step backwards in order to (in the near future) take two steps forward.

10.19.2006
at 2:32 pm EST Patrick S. O'Donnell

Cesare,

All of your topics are subject-matter delimited. I wonder if we might be moving into an era defined more by new sets of actors than by topics. Or perhaps that just begs for a parallel list of methodologies du jour. From positivism to political process/New Haven School to IR theory to . . . what?

10.19.2006
at 3:06 pm EST Peter Spiro

Following on Peter’s and Jeff Atik’s e-mails, perhaps we should think of the mid-1990’s to today not as an era of international criminal law or or international trade law (really nothing wrong in saying that it was an era of both) but perhaps as a time defined by the rise of new dispute resolution mechanisms. Int’l Crim Law had the ICTY, the ICTR, the mixed tribunals and now the ICC. Trade and investment law (as Jeff expalined) had increased legalization in the WTO, NAFTA Chapter 11, and the ever-increasing spread of BITs.

And, of course, there are other new courts, like the International Tribunal for the Law of the Sea, and the increased use of existing courts like the regional human rights tribunals.

So, if we have to limit ourselves to one story per era, perhaps the story for the era we are now in (and possibly exiting) is the story of international dispute resolution becoming more robust. This is not an era based on a substantive issue, but on an insitutional shift towards increased use of legalistic dispute resolution.

As mentioned in my previous comment, my concern is that the next era will be about how attempts at defining universal rules (and using them to legalistically resolve disputes) will come under increased stress due to normative differences, such Islamists rejecting various human rights norms or the U.S. claiming more and more frequently that it is a special case requing special rules, to name two examples. So maybe the era we are entering is one of local norms versus international law.

The International Law Commission is studying the possible fragmentation of international law due to the proliferation of international tribunals and treaty regimes; I think the real risk of fragmentation is due to a rejection of (the possibility of) universal rules by domestic societies that want to protect what they view as unique in their culture.

10.19.2006
at 4:52 pm EST Chris Borgen

With regard to the topic, ‘Islamists rejecting various human rights norms,’ Nema Milaninia has some relevant posts over at the Transnational Law Blog. It’s interesting and, I think, represents progress of sorts, that the Organization of the Islamic Conference adopted The Cairo Declaration of Human Rights in Islam (1990) and that the League of Arab States endorsed the Arab Charter on Human Rights (1994). As Milaninia’s post makes clear, there’s much to be found wanting in these documents from the vantage point of human rights law as it has evolved in the international community. Nonetheless, both documents can be used as points of dialogue that may one day serve to entrench universal rules by acclamation rather than by (perceived) imposition. (Incidentally, Milaninia views the ambiguity and vagueness in these documents as uniformly and invariably debilitating, while I would say this may also leave them vulnerable to interpretations more in line with existing human rights law, i.e., vagueness and ambiguity can cut both ways).

Perhaps needless to say (and unsurprisingly), I believe there’s much wisdom in Peter and Chris’s comments, but it is a bit fun to stick with Cesare’s assumptions and play within its parameters, and see what folks come up with!

10.19.2006
at 6:03 pm EST Patrick S. O'Donnell

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